Must-knows before secretly recording your tenants

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Q: One of my tenants wants to meet with me to go over some issues we’re having with him. He has complained that we are discriminating against him, and has threatened to file a complaint. I think he’s just trying to get some money out of us, and I want to record the conversation so that I have evidence of his thinly veiled threats in case I need it. Is there anything illegal about recording our meeting? –Dustin J.

A: There’s no legal problem at all in recording your conversation with your tenant as long as you tell the tenant, at the outset, that your recording device will be switched on. If your tenant doesn’t want to be recorded, he can simply leave the meeting. If he agrees, the recording can be shown to your lawyer and any lawyer or fair housing agency contacted by the tenant, and could conceivably be introduced as evidence in court.

But are you asking whether you can secretly record the meeting? The answer to this one is quite different. Many states, including California, Connecticut, Illinois and Georgia, do not allow a party to a conversation to intentionally record it without all participants’ permission.

In California, for example, the violation is a criminal offense (a misdemeanor), and it exposes the perpetrator to civil damages as well. (Calif. Penal Code sections 632 and 637.2.) But importantly, in order for the recording to be illegal, the conversation must have taken place in a place and manner that gave rise to a reasonable expectation of privacy on the part of the person being recorded.

For example, a loud argument at the community pool, which is recorded by someone’s cell phone (not necessarily by one of the speakers), probably would not be a violation of the law, because no one could reasonably expect that the conversation would be confidential. Not so if the meeting takes place behind closed doors, with only the two speakers present.

You’ll need to find out whether your state prohibits secret recordings. If it does, do not proceed. Doing so is a crime, although it’s not too likely that a prosecuting attorney will be interested in prosecuting a single offense.

Many times, however, people record conversations and then later tell their lawyers about the recording. A lawyer might be able to use the recording in court in a very limited circumstance: If the other side testifies under oath in a way that’s inconsistent with statements made on the recording, a judge might allow the recording into evidence to discredit, or impeach, the witness’s testimony. Some states have decided that it’s more important to expose a liar than to uphold their state’s rule against secret recording.

Q: A family applied for a two-bedroom apartment. Because the family included a teenage boy and girl, I thought that the place was too small for them, because the kids would each need a bedroom. The family told us that the kids don’t mind sharing a room, but it seems wrong to me. Can I reject them without risking a fair housing complaint? –Larry L.

A: You may mean well, but your conclusions about what is proper or not will not legally support your position. The federal Fair Housing Act prohibits landlords from discriminating against applicants and tenants on the basis of their "familial status." Among other things, this means that the landlord cannot make decisions about how families should allocate bedrooms (not only are family sleeping arrangements none of their business, but all too often, landlords make this issue a pretext for turning families away). As long as the space meets minimum size requirements for a sleeping room, as established by your state building codes, it’s none of the landlord’s business who bunks with whom.

A family that thinks you are making decisions based on the age and sex of their children may consider calling the local HUD (Department of Housing and Urban Development) office. They can file a complaint online. HUD will investigate the matter (or have an equivalent state agency do it for them), and if there’s a basis for their complaint, they’ll attempt to settle the case. If that goes nowhere, it will go before a judge, who has the ability to compensate the tenants, order you to offer the rental, order you to attend fair housing education classes, and more.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.